Citation Nr: 1335821	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  12-18 079	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to nonservice-connected disability pension benefits.


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel


INTRODUCTION

The appellant served in the Philippine Scouts from May 1946 to April 1949. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) regional office (RO).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Appellant served in the Philippine Scouts from May 1946 to April 1949. 


CONCLUSION OF LAW

As a matter of law, the Appellant's service in the Philippine Scouts was not qualifying for nonservice-connected pension purposes.  See 38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(b).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the law, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim."  38 U.S.C.A. § 5103(a)(1) (West Supp. 2012).  

However, these provisions do not apply here because the law, not the evidence, is dispositive.  See Mason v. Principi, 16 Vet.App. 129 (2002) ("futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim. . ." including a claim for nonservice-connected pension where the appellant did not have any active service in a period of war); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994).  The Appellant's service records reflect that he served in the Philippine Scouts and as a matter of law, he is not entitled to nonservice-connected pension based on his service.  See 38 U.S.C.A. § 107(b); 38 C.F.R. § 3.40(b); Manlincon v. West, 12 Vet. App. 238, 240 (1999) (widow of Appellant of New Philippine Scouts not entitled to nonservice-connected death pension because appellant's service is not considered qualifying active service for VA pension benefits). 

To establish eligibility for VA disability pension benefits, the claimant must be a veteran who had active military, naval, or air service.  See 38 U.S.C.A. §§ 101(2), (24), 1521(a), (j) (West 2002); 38 C.F.R. §§ 3.1, 3.6 (2012).

A "veteran" is generally defined as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.  38 U.S.C.A. § 101(2).  "Active military, naval, and air service" includes active duty.  "Active duty" is generally defined as full-time duty in the Armed Forces.  38 C.F.R. § 3.6(a), (b).  "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components.  38 C.F.R. § 3.1.

"Service in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 [Pub. L. 79-190] shall not be deemed to have been active military, naval, or air service for the purposes of any of the laws administered by the Secretary," except generally with regard to (1) certain National Service Life Insurance, and (2) title 38, chapters 11 (service connection), 13 (DIC), 23 (burial), and 24 (national cemeteries).  38 U.S.C.A. § 107(b) (2012); see Manlincon v. West, 12 Vet. App. 238, 240 (1999) (widow of Appellant of New Philippine Scouts not entitled to nonservice-connected death pension because appellant's service is not considered qualifying active service for VA pension benefits).

"All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Pub. L. 190 as it constituted the sole authority for such enlistments during that period."  38 C.F.R. § 3.40(b) (2012).

With regard to Philippine service, certifications by the service department will be accepted as establishing periods of recognized service as a Philippine Scout, a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States, or as a guerrilla.  38 C.F.R. §§ 3.40, 3.41; Duro v. Derwinski, 2 Vet. App. 530 (1992).  Generally, a service department determination as to an individual's service shall be binding upon VA unless a reasonable basis exists for questioning it.  See 38 C.F.R. § 3.1(y); Duro v. Derwinski, 2 Vet. App. 530 (1992).

The Board is limited in its ability to grant benefits by the laws promulgated by Congress, which laws do not provide for pension benefits here.  


ORDER

Entitlement to nonservice-connected disability pension benefits.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs